Court No. - 67
Case :- CRIMINAL APPEAL No. - 5519 of 2019 Appellant :- Neetesh Respondent :- State of U.P. and Another Counsel for Appellant :- Shivam Yadav,Akhilesh Singh,Dileep Kumar(Senior Adv.),Rajrshi Gupta Counsel for Respondent :- G.A.,Anil Kumar Sharma
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the appellant, learned counsel for the complainant as well as learned A.G.A for the State and perused the record.
This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 2015 (in short "S.C./S.T. (PA) Act") has been filed for setting-aside the bail rejection order dated 31.07.2019 passed by Special Judge, SC/ST Act, Court No. 2, Etawah, in Bail Application No. 1463 of 2019(CNR No. UPEW-01-003444-2019) (Neetesh Vs.
State of U.P), arising out of case crime no. 20 of 2019, under Sections 307, 504 IPC and Section 3 (2) (5) SC/ST Act, Police Station- Vaidpura, District- Etawah.
It is submitted by learned counsel for the appellant that the FIR was got registered after delay of 24 hours by the brother of injured under the aforesaid sections of I.P.C. and SC/ST Act. On 01.04.2019 against the appellant and one Ramdas with the allegation that when the first informant/complainant and his brother were going to their village by motorcycle after closing their shop and reached near link road to their village, suddenly appellant and co-accused came out and on the exhortation of appellant, co-accused Ram Das opened fire from country made pistol with intention to kill the first informant and his brother, which hit the brother of first informant, who was the pillion rider of motorcycle. After raising alarm, the appellant and co- accused person fled away from the spot by extending threats and abusing them by taking their caste name. The injury report shows that there is a coastal of entry and corresponding to it wound of exit from the stomach. Thus singular GSW which relates to co-accused Ram Das. The role attributed to the applicant, as mentioned above is only of exhortation. The applicant is languishing in jail since 26.07.2019, having five criminal cases to his credit out of which two of them of Gunda Act, in which he is on bail.
Learned counsel for the appellant has submitted that the only role of exhortation has been attributed to the appellant in the FIR. It is further submitted that there are criminal history of five cases of the appellant, out of which, two cases of Gundas Act, in which he is on bail. The appellant is languishing in jail since 26.07.2019.
Learned A.G.A and learned counsel for the complainant opposed the prayer for bail and could not dispute the aforementioned facts.
The submission made by learned counsel for the appellant, prima facie, is quite appealing and convincing for the purpose of bail only.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, taking into account the only role of exhortation has been attributed to the appellant, I am of the view that the appellant has made out a case for bail.
Let the appellant- Neetesh, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPLICANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.
(iii) THE APPELLANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(iv) IN CASE, THE APPELLANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPELLANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(v) THE APPELLANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPELLANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST HIM IN ACCORDANCE WITH LAW.
However, it is made clear that any willful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court.
Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated 31.07.2019 passed by Special Judge, SC/ST Act, Court No. 2, Etawah, in Bail Application No. 1463 of 2019(CNR No. UPEW-01-003444-2019) (Neetesh Vs. State of U.P), arising out of case crime no. 20 of 2019, under Sections 307, 504 IPC and Section 3 (2) (5) SC/ST Act, Police Station- Vaidpura, District- Etawah, is hereby set aside.
Order Date :- 16.12.2019 v.k.updh.